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Slurs against legal aid put our environment at risk

Date: November 08 2012


Don Anton

The Environmental Defender's Office in NSW is in current need of some defending after recent criticism and a concerted campaign to weaken its interventions in the courts on behalf of the environment.

The EDO in NSW is Australia's oldest and largest independent public interest environmental legal aid centre.

It has served the rights of the people of NSW since 1984 and advances their community-wide interests in a healthy environment under the rule of law every day of the year. It has earned a national and international reputation for professional legal work of the very highest quality On this basis, it has received the continual support of successive NSW governments since its inception.

This should be a matter of pride in NSW because such support for the EDO represents a commitment to the protection of the community's environmental interests by all major political parties. Without the EDO, many public environmental rights (both procedural and substantive) would never be heard, enforced or upheld. Without the EDO, public environmental interests would rarely be able to achieve a rough legal parity with narrow, commercial self-interests represented by expensive private lawyers.

The bipartisan support for the work of the EDO has been a mark of political maturity and has set NSW apart as a leader. Despite its celebrated history and record of achievement, the EDO has been subject to recent attacks in the NSW Parliament. These attacks followed challenges to the EDO's independence and integrity by certain press and private interests.

These detractors essentially claim the EDO is a front for ''legal obstruction'' through frivolous and vexatious litigation. This claim is a baseless slur. The EDO in NSW has never had a case in which it has provided representation struck out as frivolous or vexatious.

The real problem for the EDO, however, has been the ongoing funding consequences of these attacks on its operations. The spurious attacks are bad enough in themselves, but they already have had an entirely unwarranted, and increasingly devastating, impact on EDO funding through cuts to historic sources provided by the NSW government. The attacks also raise uncertainty about vital future NSW funding. If these cuts are not reversed and stopped the future of legitimate public interest environmental litigation is in doubt.

But the damage goes beyond the ability to act on behalf of the public interest in litigation.

These cuts will also greatly impoverish environmental law more broadly in NSW, in at least three additional ways.

First, the people of NSW will lose the ability to obtain free legal advice about complex environmental problems. They will be without free local environmental workshops concerning issues important to their communities. They will soon have stale and out-of-date English language guides to environmental law and will be forced to buy expensive books and pay, if they can, for expensive private legal counsel.

Second, environmental policy and law reform expertise at the EDO, built up over decades, will wither. The community, decision-makers and other stakeholders reliant on this expertise will lose a wealth of free knowledge on which to draw. The alternative will be to pay high-priced consultants and lawyers.

Finally, the legal profession will lose what has been a rich source of fodder for the bench, bar and academe. The EDO also provides a unique training ground for future members of the profession. The cuts mean one of Australia's best practical environmental law training grounds will be shattered.

The EDO deserves better from the NSW government. Its funding ought to be restored and plans for cuts abandoned. A failure to do so will harm environmental law in the state for years. In turn, the environment of all citizens in NSW will suffer over the long term at the expense of individual, short-term interests.

Don Anton teaches law at the Australian National University College of Law. This article was prepared with input from ANU colleagues Andrew Macintosh, James Prest and Matthew Zagor and is based on a letter drafted by Don Anton and sent to Premier Barry O'Farrell with signatures of 57 leading professors of environmental law and academics from law schools and universities across Australia.

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